The U.S. Department of Homeland Security issued policies for the agency’s body-worn camera program last week which are at odds with those supported by federal civil rights prosecutors in Portland.
The policies, which set the minimum standard for the nine law enforcement agencies under Homeland Security, allow for what’s called pre-review. Officers can view footage before writing their reports and are only required to state whether or not any footage was viewed. Those nine agencies have the option of drafting more strict policies for themselves, if they choose.
For more than a year, the U.S. Department of Justice, which is in a settlement agreement with the city over its excessive use of force against people in mental health crises, has insisted Portland police officers be barred from viewing body camera footage after use of force incidents prior to writing their reports. Recording an officer’s untarnished memory of what happened is critical to understanding what they were thinking when they used force, federal prosecutors say.
“We believe the better approach would be to capture that subjective impression so it’s not lost irretrievably, look at the video, write the supplement, and ensure the accuracy of the report but capture of that subjective impression, which can protect officers,” Assistant U.S. Attorney Jared Hager told a federal judge in a February hearing discussing Portland’s proposed policies. Hager said prohibiting pre-review would help build trust with marginalized communities who are skeptical of law enforcement.
Homeland Security’s policies were written by the agency’s new Law Enforcement Coordination Council, a group set up to review the agency’s law enforcement policies and training in the wake of its violent response to 2020 protests in Portland.
Homeland Security officers will be required to wear body cameras when they are conducting patrol and engaged with the public, during pre-planned arrests and when serving warrants. The cameras may not be used to record legal First Amendment activities such as protests or religious expression unless the officers are “addressing potentially unlawful activity.”
In a statement, Secretary of Homeland Security Alejandro Mayorkas said instituting body-worn cameras will help bring the agency “to the forefront of innovation, and to further build public trust and confidence” in its officers.
Sen. Ron Wyden, D-Ore., who has been hounding the department to answer questions about the agency’s actions in Portland in 2020, applauded the policies as a victory for improved accountability.
“The inappropriate use of force by federal agents in Portland during the summer of 2020 must never happen again,” Wyden said in a statement. “I will continue to watchdog how the department rolls out the policy, and to push DHS for additional reforms to ensure that federal agencies limit their use of force, uphold people’s civil rights and liberties, and aren’t hijacked for political ends.”
Former President Donald Trump sent hundreds of Department of Homeland Security officers to Portland starting in June 2020 as part of a federal response to racial justice protests that summer. The level of violence shocked political leaders in the state and drew national attention when OPB reported federal officers were using unmarked minivans to detain protesters blocks away from any federal buildings. The deployment was blamed for reenergizing a flagging protest movement in the city.
For more than two months in 2021, Wyden blocked the confirmation of Biden’s pick to lead Customs and Border Protection, demanding more thorough answers from the federal government about the 2020 protests. After a phone call with Wyden in Sept. 2021, DHS announced the formation of the Law Enforcement Coordination Council, which wrote the body camera policies.
It’s not clear if federal pre-review policies will change. A May 25, 2022, executive order on policing gave the U.S. attorney general one year to assess the advantages and disadvantages of allowing officers to view their footage. The Department of Justice would not confirm if the study had been completed on schedule.
Asked if he thought DHS was adopting best practices, a Wyden spokesperson said the senator would be closely monitoring their implementation to ensure they are bringing the sought-after accountability.
According to the executive order, the attorney general is required to publish the assessment’s findings and best practices by the end of November.